This matter is before the court on a motion for a new trial. It is argued that error was committed by the trial court in allowing the jury, over the timely objection of counsel, to separate and retire to their homes for the evening, thereby temporarily suspending their deliberations before they had reached a verdict.
By way of background, it is appropriate to record certain salient facts: On May 5, 1969 at approximately 5:30 P.M. at the intersection of Halsey and Market Streets in the City of Newark, and during the height of rush-hour traffic, an ambulance owned by defendant New Jersey College of Medicine and Dentistry and operated by defendant George Vanarelli in an easterly direction on Market Street collided with a car owned and operated by Mary M. Eberhardt. The force of the collision drove the Eberhardt vehicle to the southeast
corner of the intersection where it mounted the curb in front of the Larkey store, striking and injuring plaintiff Anthony F. Pessini. As a result of the collision Pessini brought suit against Mrs. Eberhardt, the College and the ambulance driver, and Mrs. Eberhardt in turn filed a separate action against the College and the ambulance driver. Both actions were consolidated for trial and tried before a jury solely as to the issue of liability.
The trial was relatively short, commencing on the morning of June 28, 1971, with testimony and summations concluded by 12:30 P.M. on June 29, 1971. Between 1:30 and 2 that afternoon the jury was instructed as to the law and thereupon retired to deliberate upon its verdict. Pursuant to R. 4:39 the court requested that the jury not render a general verdict but that written interrogatories be answered. Said interrogatories, containing the issues to be decided, were as follows:
1. Was the defendant Mary Massie Eberhardt guilty of negligence which was the sole proximate cause of the injuries of plaintiff Anthony F. Pessini?
2. Was the defendant George Vanarelli guilty of negligence which was the sole proximate cause of the injuries of the plaintiff Anthony F. Pessini?
3. Where the defendants Mary Massie Eberhardt and George Vanarelli both guilty of concurrent negligence which combined to proximately cause the injuries of the plaintiff Anthony F. Pessini?
4. Was the defendant George Vanarelli guilty of negligence which was the sole proximate cause of the injuries of plaintiff Mary Massie Eberhardt?
The jury retired at approximately 2 P.M. to begin its deliberations; it returned at 3:15 P.M. with several questions and accordingly received additional instructions in the presence of counsel; it again returned at 5 P.M. with further questions and likewise received further instructions. At that point the following colloquy took place:
Court: Now the hour is just after five. I would like to ask the foreman of the jury whether you feel that with more deliberations ...